Sunday, 4 December 2005

ICANN agrees to allow an independent review of its lack of transparency

Half an hour into the ICANN Board of Directors' meeting this morning in Vancouver, General Counsel John O. Jeffrey sent me an e-mail message across the room from his seat behind the Board members, indicating that ICANN agrees (with some conditions, qualifications, and disclaimers) to refer my request to an independent review panel (IRP) charged with determmining whether ICANN has acted in accordance with its own Bylaws on transparency, as required by ICANN's Bylaws on accountability.

This will be the first independent review in ICANN's history, although mine is not the first request for independent review, and other such requests remain outstanding .

ICANN's agreement to carry out its obligation to refer my rquest to an IRP comes almost 8 months after my formal request for independent review. Mr. Jeffrey's e-mail message gives no indication of how rapidly ICANN will act to carry out the promised referral, although he says that "ICANN's agreement to have your concerns reviewed by an arbitrator will not bring a halt to ICANN's work or .TRAVEL's implementation", effectively denying (or, more precisely, continuing the ongoing de facto denial by inaction of) my request for a stay. And Mr. Jeffrey still claims not to understand how denying access to meetings, documents, and records materially affects me as a journalist: "We disagree with your assessment that you have been 'materially affected' by an action of the ICANN Board."

According to Mr. Jeffrey, I will be required "to post the appropriate payments (approximately US$3250 for the filing fees portion of the IRP costs) before commencement of any action, and ... be prepared to pay all the costs of the IRP provider in the event that you do not prevail in this action."

I'm here entirely at my own expense. I invite and will welcome any financial contributions toward the costs of the independent review.

I have posted Mr. Jeffrey's e-mail message below in the extended entry. I will post the response I am preparing to send as soon as I am able to do so.

I thank all those whose support has helped to induce ICANN finally to agree to act on my request.

We now understand from your recent communications, and particularly your comments at the open microphone at today's Public Forum in Vancouver, that you are still interested in pursuing an Independent Review Process, as set out in the ICANN Bylaws. The issue that you are setting forth as I understand it from your correspondence is whether ICANN made appropriate efforts to conduct the STLD process with as much transparency as was "feasible", consistent with the goal ICANN has established for itself in its Bylaws to operate "to the maximum extent feasible in an open and transparent manner and consistent with procedures designed to ensure fairness." http://www.icann.org/general/bylaws.htm#III-1

Please note that ICANN's agreement to have your concerns reviewed by an arbitrator will not bring a halt to ICANN's work or .TRAVEL's implementation. ICANN's Bylaws do provide that an Independent Review Panel may "recommend that the Board stay any action," but the Bylaws do not provide that any individual request for independent review by itself creates an automatic stay.

Lastly, we were unable to find anywhere in your correspondence a confirmation that you acknowledge that ICANN's Bylaws provide that "The party not prevailing shall ordinarily be responsible for bearing all costs of the IRP Provider." http://www.icann.org/general/bylaws.htm#IV-3.12 , as we have previously asked you to acknowlege. If you do intend to go forward with an IRP complaint, we will refer your complaint to an Independent Review Panel, but we must be assured that you will be willing and able to post the appropriate payments (approximately US$3250 for the filing fees portion of the IRP costs) before commencement of any action, and that you will be prepared to pay all the costs of the IRP provider in the event that you do not prevail in this action.

Assuming that this is acceptable, please provide us with your formal IRP request and we will forward your request to the International Centre for Dispute Resolution which ICANN has designated to provide independent review services in accordance with the Bylaws. Details about ICDR's procedures and fees are available on their website at http://www.adr.org/International .

Additionally, we are interested in whether you have engaged Tralliance directly regarding your grievances, and ask that you provide us with information regarding this if you intend to proceed with your request for relief so that we can understand how any harm may or may not have been remedied.

Thank you for your attention. Please feel free to call or write if you have any questions.

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